Apologies for the long delay. It has been caused by, principally, by the need to resolve technical problems arising from the transmission to core participants and witnesses who need to hear evidence which is the subject of a restriction order. They have now, I think, been satisfactorily resolved.
Restriction orders have been made in respect of eleven private individuals to protect their privacy and similar rights. They have not been made to protect any state interest. The nature of the restriction order, in each case, is that certain aspects of evidence concerning them may not be publicly distributed.
Evidence will be given in the hearing room about them, but reporting it will subsequently be subject to restriction. The restrictions only apply to those aspects of the evidence which, if broadcast publicly, would or might infringe their legitimate privacy and similar rights.
Mr Wood, Kings Counsel, for a group of core participants, including as it happens, four who are the beneficiaries of such orders, submits that the evidence should be live-streamed subject to a 10-minute delay, that those aspects which are or might be the subject of reporting restriction orders should be dealt with discreetly and separately. And by that means, the majority of the evidence given which touches upon the 11 individuals and all other evidence can be given and distributed with a 10-minute delay publicly. He submits that although Section 18 of the Inquiries Act does not require that in terms, it is in keeping with the spirit of Section 18.
This issue, as he acknowledges, has arisen in the inquiry conducted by Lady Justice Thurlwall. In paragraph 18
of her ruling on the issue, she said in terms that are not controversial
Section 18.1.a of the Act provides that, subject to any restriction under s.19, "the chair must take such steps as she considers reasonable to ensure that members of the public [including reporters] are able - (a) to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry." As counsel to the inquiry points out, the duty is satisfied if there is either attendance in the hearing room or there is 'simultaneous' transmission. All Core Participants who dealt with this issue were in favour of the public and media attending the hearing by being present in the hearing room. Counsel to the Inquiry made the same submission.
She went on to direct that there should not be live streaming of the proceedings of the inquiry and did so on a fact-sensitive basis, as she observed in paragraph 24 of her ruling.
Whether I direct livestreaming worldwide or live links or neither will have no effect on the rigor of my approach, nor on the approach of all who have responsibility for helping me to get to the truth.
The problem that I face is not precisely that which she did. It is as follows. A very significant part of the evidence which is going to be given inTranche 2 Phase 2 concerns the actions of Robert Lambert. And in particular whether he played an active part in the planting of incendiary devices in Debenham stores on the night of the 11th of July 1987, which when activated caused damage from sprinklers in two stores and fire damage in a third. I must report on my findings on that and similar issues to enable the Court of Appeal to determine the pending appeal of Shepherd and Clarke who were convicted of placing incendiary devices in the Debenham stores on that night.
The evidence is contested. One of the issues that I must determine is who is telling me the truth about these matters. I must also determine the accuracy of the evidence of those witnesses who I am satisfied are telling me the truth.
These are complex and difficult questions and it is of vital importance that evidence about them is given by witnesses who are subject to the least possible interference in the giving of evidence. In other words, it is of vital importance to me that the evidence of these witnesses is given in the same manner as if it would be at a trial, criminal or civil. In other words, calmly, without interruption and in such circumstances as permits them to do their best and to give me the opportunity to make a conventional assessment of truthfulness and accuracy.
This cannot be done if the evidence is to be repeatedly interrupted by the need to enforce reporting restriction orders as well as other restriction orders that have been made of a different kind.
Experience to date has shown that repeated interruptions of the evidence of significant witnesses has occurred, and is likely to occur, if live streaming of the evidence of such witnesses occurs.
Principally for that reason I therefore reject the submissions that have been made on all sides that evidence of witnesses whose account involves matters that are subject to reporting restriction orders should be live streamed.
I am reinforced in that conclusion by the observations of the Court of Appeal in in re Guardian News and Media Limited and others, 2016-1 Weekly Law reports 1767 at paragraph 69, in which problems of a not dissimilar kind occurred in a case involving national security tried in a criminal court, when what turned out to be complex arrangements were put in place to give effect to a variety of interests. [
ruling here as a doc file]
What the Court observed at paragraph 69 was
It was not possible for this Court to have foreseen these difficulties, but the experience of the way in which it affected the conduct of the trial leads us to the firm conclusion that a Court should hesitate long and hard before it makes an order similar to that made by this Court on 4 June 2014 given the unexpected effect it had on the conduct of the trial.
I fear precisely such an effect on the conduct of the inquiry if I were to accept the submissions made by Mr. Wood and others about live streaming.
A subsidiary reason, but no less important, is that Counsel to the Inquiry have prepared their questioning of these witnesses on the footing that they would be able to do so in the conventional manner and without interruption. To require them now to start again and to subdivide their proposed questioning of witnesses into two sections, those which can be livestreamed and those which can't at this stage in the proceedings of the inquiry, is not sensible any more than it is not practical.
For those reasons I reject the submission that the evidence of the witnesses relevant to this issue should be live streamed.
A further submission is made by Mr. Wood supported by Ms. Johnson, Ms. Sivakumaran and Ms. Heaven that those affected by the evidence who may wish to communicate questions to be asked by counsel during the course of the hearings should be able to hear the evidence given, if not by livestream, then by a live link.
This possibility was initially rejected on behalf of the inquiry because of perceived practical difficulties. In particular, the difficulty of ensuring that what was heard on the live link was heard only by the person who it was intended should hear it, and should not be widely distributed in a manner that would put the restriction order, put in place to protect the legitimate interest of private individuals, at risk or worse made futile.
Intensive discussions have now produced an answer which can be put into effect from Thursday onwards. I will not spell out the details of it now. That is not necessary as part of this judgment. But those who need to hear the evidence of witnesses in Tranche 2, Phase 2, including the media, will be able to do so subject to certain requirements which they should not find burdensome.
At the very least it is worth trying this exercise. If experience demonstrates that it cannot sensibly be controlled in a manner which gives effect to the restriction orders then the issue will have to be revisited but my understanding is, and I do not wish to spell out the technicalities now, my understanding is that that ought not to arise.
Those who receive the evidence will do so on a live link subject to a 10 minute delay. It will be communicated to them and only to them.
Those I think deal with the substantive issues that have been addressed with two immediate exceptions.
Dave Morris is due to give evidence and will now do so after the luncheon break. He wishes to give evidence in public. His view throughout has in my opinion commendably been publish and be damned, and he is keen to ensure that the public should understand what he has to say about the issues about which he is going to be questioned. He also wishes those who need to hear what he has to say to be able to hear it. I cannot accede to his request.
If he remains willing to give evidence I will ask him to do so this afternoon. His evidence will not be livestreamed nor will it be capable of being sent by live link to identified individuals. If his evidence is not complete and if there are matters that can be publicly ventilated, conceivably by livestream, then I will invite him to return to give evidence on Thursday morning. In any event the evidence which he gives will be made public. A transcript of it will be published by lunchtime tomorrow and a video recording of it will be made public within three to five days of it having been given.
Because of the need to set up arrangements it will not be possible for the evidence of Mr Bailey to be given tomorrow with links in place to permit those who need to hear it to do so. Because of his personal circumstances it is unlikely that he could be asked to be recalled. Should there be any subsequent questions arising out of the evidence that he has given which were not apparent to those interested in it who would under the arrangements that are going to be put in place have heard it by a link but for the fact that cannot be set up satisfactorily until Thursday.
The solution is not perfect but it is the best that can be achieved and the inquiry needs to get on with its hearings.
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